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OEA/Ser.L/V/II.54
Doc. 9 rev. 1
16 October 1981
Original: Spanish

ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
1980-1981

 

INTER-AMERICAN COMMISSION OF HUMAN RIGHTS

RESOLUTION Nº 23/81

CASE 2141 (UNITED STATES)

 

DISSENT OF DR. MARCO GERARDO MONROY CABRA

 

I dissent from the majority opinion of the Inter-American Commission on Human Rights in Case 2141 for the following reasons:

 

1.          Article I of the American Declaration of the Rights ant Duties of Man reads: "Every human being has the right to life, liberty, and the security of his person." Since the text is not explicit, I think that the interpretation most in accord with the genuine protection of the right to life is that this protection begins at conception rather than at birth.

 

2.          The historical argument, upon which the majority opinion of the Commission is based, is unclear. Indeed, a review of the report and the minutes of the Working Group of the Sixth Committee shows that no conclusion was reached to permit the unequivocal inference that the intention of the drafters of the Declaration was to protect the right to life from the time of birth--much less to allow abortion, since this topic was not approached.

 

3.          In its resolution, the Commission states that Article 1 of the Inter-American Juridical Committee draft was incompatible with the laws of some of the American States, which in certain cases permitted abortion and this is true. This incompatibility, however, does not feat to the conclusion that the IX International Conference of American States in Bogotá intended to take the position that life should be protected only from birth and not from conception, since this conclusion is not evident from the Minutes of the Sixth Committee. The Commission's position implies that a conflict between domestic ant international law is possible, which in each case would be resolved according to the principles of international doctrine, international jurisprudence, and the constitutional laws of each State. Needless to say, the now-prevalent concept is the monist position held by Kelsen, that in case of conflict international law takes procedence over domestic law, a principle adopted as a general rule in Articles 27 and 46 of the Vienna Convention on the Law of Treaties. This would imply that if the Declaration ran counter to the laws of some American States, international law would prevail.

 

4.          In its opinion, the Commission argues that the sentence "This right extends to the right to life from the moment of conception" was eliminated from the Inter-American Juridical Committee draft and such is the case. However, one cannot thereby conclude that life should not be protected from conception, inasmuch as the statement "to the right to life of incurables, imbeciles, and the insane" was also eliminated, and no one could reasonably say that the life of incurables, imbeciles, or the insane should not be protected.

 

5.          Since Article 1 does not define when life begins, one can resort to medical science, which has concluded that life has its beginning in the union of two series of chromosomes. Most scientists agree that the fetus is a human being and is genetically complete.

 

6.          If international agreements are to be faithfully and literally interpreted, in keeping with the meaning that should be attributed to the terms of a treaty and read in-context, taking into account the objective and purpose of that treaty, there is no doubt that the protection of the right to life should begin at the moment of conception. Since Article 1 is general, the protection should begin when life begins, and we have already seen that life begins at the time fertilization is completed in the union of two series of chromosomes.

 

7.          Even Roman law recognized that rights could be granted to an infant who had been conceived although was not yet born, provided that enjoyment of these rights be subject to the actual fact of birth which constituted the beginning of the existence of the person (infans conceptus pro nato habetur, quoties de commodis eyus agitur). This principle, which protects the life of the unborn, is set forth in many civil codes (e.g. Articles 91 ant 93 of the Colombian Civil Code.)

 

8.          The intentional and illegal interruption of the physiological process of pregnancy, resulting in the destruction of the embroy or death of the fetus, is unquestionably an offense against life and, consequently, a violation of Article 1 of the American Declaration of the Rights and Duties of Man. The maternal womb in which the flame of life is lighted is sacred and may not be profane to extinguish what God has created in his image and in his likeness. It has been said repeatedly, that, from the biological standpoint, human life exists from the moment that the ovum is fertilized by the sperm and, more specifically, from the time the egg travels to the uterus. The scientific process is the following: when in a fertile state, the sex cells (ova and spermatozoids) undergo a special process of chromosome division called myosis, in which the 46 chromosomes of each cell are reduced to 23, in such a way as to distinguish the sperm and the ovum, with each containing only one half the number of chromosomes present in the nucleus of the majority of human cells. After a process of search and rejection on the part of these fertile cells, comes what is known as activation, which occurs when a sperm cell succeeds in penetrating the interior of the ovum. This produces fertilization, the process whereby two sex cells (ovum and sperm) unite to form the first cell of an individual. This first stage, called activation, is followed by another, when the genetic messages carried by the sperm and those already possessed by the egg are attracted to each other and unite. Added together, the 23 chromosomes of the mother and the 23 of the father total the 46 chromosomes of the sister cell.

 

This union of male and female elements produces the zygote, which is simply the fertilized egg. We now have fertilization in the true sense of the word. It can then be said that conception has taken place and that a human being exists, since through the union that has occurred, we have a human cell containing its intrinsic 46 chromosomes. This new being, which scientists call a zygote, differs from the father and the mother, in that it has only one half of him and one half of her. What we have is a fertilized egg, representing a life--a life that contains the genes to make way for the appearance of new cells that will form the different parts of the human body. Thus fertilized, the egg begins its journey toward the uterus, which it will reach in a few days, and the embryo will then continue developing in stages. These stages have now been distinguished from each other by scientists, who are able to tell us the precise age of any of them.

 

Jerome Lejeune, professor of fundamental genetics of the University of Paris, member of the Academy of Sciences of that city and of the Royal Society of Medicine of London, was asked whether the first cell, from the moment of conception, might be considered already a human being with its own personality, independent of the mother. His reply was "Of course. It has been demonstrated that all the genetic features of the individual are found in that first cell, which will develop progressively, and if all these features were not there at the outset, the individual would never develop."

 

9.          Life is the primary right of every individual. It is the fundamental right and the condition for the existence of all other rights. If human existence is not recognized, there is no subject upon which to predicate the ocher rights. It is a right that antecedes other rights and exists by the mere fact of being, with no need for the state to recognize it as such. It is not up to the state to decide whether that right shall be recognized in one case and not in another, since that would mean discrimination. The life of the unborn child, the infant, the young, the old, the mentally ill, the handicapped, and that of all human beings in general, must be recognized.

 

The foregoing means that if conception produces a human life, and this right is the primary and fundamental one, abortion is an attack on the right to life and, therefore, runs counter to Article 1 of the American Declaration of the Rights and Duties of Man.

 

CONCLUSIONS:

 

1.       Article 1 of the American Declaration of the Rights and Duties of Man protects human life from conception.

 

2.       The travaux preparatoires of the Declaration and the discussion of Article 1 in the Sixth Committee and in the Working Group do not lead to the conclusion that the drafters of the Declaration intended to restrict the protection of the right to life to the period following birth.

 

3.       Abortion laws violate Article 1 of the aforemention Declaration.

 

4.       In terminating legal protection unborn children, the judicial decision of the United States constitutes a violation of Article 1 of the American Declaration of the Rights and Duties of Man.

 

5.       It is not appropriate here to analyze Article 4 of the American Convention on Human Rights, since the United States has not ratified this treaty. The foregoing explains my reasons for dissenting from the majority opinion of the Commission.

 

 

INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

RESOLUTION Nº 23/81

CASE 2141 (UNITED STATES)

 

DISSENT OF DR. LUIS DEMETRIO TINOCO CASTRO

 

I dissent from the majority opinion and from the Resolution adopted in Case 2141, in its Operative Part and in paragraphs 19, 30, and 31 of the Preamble, for the reasons I shall go on to state, but not without first congratulating the Rapporteur for his praiseworthy effort of summarizing in the form in which they appear in the other paragraphs, the facts and the augments of the Parties, and the background material, both from the American Declaration of the Rights and Duties of Man and from the American Convention on Human Rights or Pact of San José, Costa Rica, which allows me in this dissenting vote to omit the restrictive listing of the facts and of the arguments presented by the parties.

 

I depart from the opinion of the majority when it affirms, in paragraph 19 of the Preamble of the Resolution, that "a brief legislative history of the Declaration does not support the petitioners' argument" and that may be concluded from the report presented by the Working Group that studied the draft wording of Article I of the Declaration, as well as from the fact that in that Group the concept contained in the draft of the Inter-American Juridical Committee had been eliminated, where it said, after stating every person has the right to life, "This right extends to the right to life from the moment of conception; to the right to life of incurables, imbeciles, and the insane." (Verbatim report of the Rapporteur, paragraph 19.b.)

 

Study of the Minutes and Documents of the Working Group concerned, and of the Sixth Committee, which was responsible for consideration of these articles of the Draft Declaration, leads me to conclusions contrary to those established in the vote of the majority. In fact, I do not find, either in the Report of the Working Group (Document CB-310/CIN-31), signed by its Rapporteur Dr. Guy Pérez Cisneros, or in the Report of the Sixth Committee (Document CB-445/C.VI-36), presented by its Rapporteur Luis Lopez de Mesa, as they appear on pages 472 to 478 and 510 to 516 of Volume V of Actas y Documentos of the Ninth International Conference of American States, published by the Ministry of Foreign Affairs of Colombia, any specific explanation of the reasons that motivated the elimination of the supplementary phrase contained in the Draft Declaration of the International Rights and Duties of Man presented by the Inter-American Juridical Committee (Document CB-7), which recognized "the right to life for all persons, including (a) the unborn, as well as (a) "incurables, imbeciles, and the insane." For which reason I must deduce that the reason for that elimination was none other than that expressed by the Rapporteur, Mr. Lopez de Mesa, in these terms: "likewise, it was decided to draft them (the rights and duties) in their mere essence, without exemplary or restrictive listings, which carry with them the risk of useless diffusion and of the dangerous confusion of their limits." And the reason cannot be other, because there would not be another for explaining the elimination of the phrase that recognizes the right to life for "incurables, imbeciles, and the insane." Now: if the elimination of the phrase that concerns those persons has no other moral, logical, and legal justification than the purpose of the Sixth Committee--and later of the plenary session of the Conference--to avoid "exemplary or restrictive listings," for the same reason it is necessary to admit that it was the purpose of avoiding its "listing"--and no other--that led the Committee and the Conference also to eliminate the unnecessarily explanatory expression "the right to life from the moment of conception."

 

I cannot, therefore, share the view that the elimination of the concept that explicitly recognizes the right to life of unborn human beings, in accordance with the draft prepared by the Inter-American Juridical Committee, resulted from "a compromise to resolve the problems raised by the Delegations of Argentina, Brazil, Cuba, the United States of America, Mexico, Peru, Uruguay, and Venezuela, mainly as a consequence of the conflict existing between the laws of those states and the draft of the Juridical Committee," of which compromise or of which problems or objections I find no mention whatever in the minutes of the Working Group, of the Sixth Committee, or of the plenary session of the Conference that met in Bogotá. On the contrary, the fact that there does not appear in the volumes of Actas y Documentos any specific motion of a written draft by any delegation that expressly requests the elimination of the phrase of the Juridical Committee's draft that was prepared by the eminent jurists Dr. Francisco Campos, Dr. José Joaquin Caicedo Castilla, Dr. E. Arroyo Lameda, and Dr. Charles G. Fenwick, in my opinion indicates that the supplementary phrase was eliminated because it was considered unnecessary, and that the concept--not discussed or put in doubt by anyone--that every person has the right to life, including those yet unborn, as well as incurables, imbeciles, and the insane, was implicitly maintained. -

 

That principle, recognized by the Inter-American Juridical Committee and not discussed at the Bogotá Conference, moreover, was not one exclusively of the internationalists of the Inter-American world, but the predominant one on the matter in the broader circles of the United Nations, as is shown by considerandum III of the Declaration of the Rights of the Child proclaimed on November 20, 1959, by the XIV Session of the General Assembly of that Organization as Resolution 1386 (XIV), which says, in pertinent part; "Whereas: the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth."

 

The draft prepared by the Inter-American Juridical Committee, as well as the United Nations Declaration of the Rights of the Child (Resolution 1386/XIV), as we have seen, expressly recognized that the human being exists, and has rights, and needs protection, including legal protection, in the period preceding his birth.

 

The American Declaration of the Rights and Duties of Man, for its part, plainly and clearly states: "Every human being has the right to life."

 

Leaving aside the legal background that led to this simple wording of Article I of the Declaration, to decide this Case it is necessary first to answer the transcendental question of the nature of the unborn, the topic of most significant legal and moral consequences of stipulating whether what has been formed in the womb of a woman and is still therein is a "human being" with the right to life. Or whether it should be understood that the "right to life" that every human being has in accordance with the already living their own lives, outside the womb. In other words: at what moment in his long process of formation, development, decadence, and death is it considered that there exists a "human being" with the "right to life" and to the protection given him by the basic legal instruments of the new discipline of Human Rights? More specifically, as it affects the problem raised by Case 2141, to which I refer: when the woman's ovum is fertilized by action of the man, has a human being been constituted and does it have the right to life?

 

The question was put barely three years ago to the eminent Dean of the Teaching and Research Unit of the University of Paris, holder of the Chair of Fundamental Genetics, there, Professor Jerome Lejeune, a distinguished member of the Academy of Moral and Political Sciences of Paris, of the Royal Society of Medicine of London, and of the American Academy of Arts and Sciences of Boston, awarded the Gold medal for Scientific Research and the Jean Toy and Kennedy Prizes, and the Science Prize of the City of Paris. "Professor," he was asked, "may the first cell formed at the moment of conception be considered already to be a human being, with his own personality, independent of that of his mother?" "Of course," he replied, adding, "It has been shown that all the genetic qualities of the individual are already present in that first cell, that the embryo, seven days after fertilization... emits a chemical message that stops the menstruation of his mother... that at twenty days after fertilization...his heart (as large as a grain of wheat) begins to beat...at two months...he already has human form completely; he has a head, he has arms, he has his fingers and toes...and even the lines on his hands drawn...and between the second and third months...the finger-prints are already indicated...and will not change to the end of his life...at three months he is already able to close his eyes, to clench his fists, and if at that moment his upper lip were caressed with a thread, he would made a face... A human being exists...there is no doubt about that." And the same Professor, in a magazine article, stated: "The fetus is a human being. Genetically he is complete. This is not an appearance; it is a fact."

 

The opinion of the vast majority of scientists, not to say all of them, is the same as that of Professor Lejeune. "The unborn child is a person whom no one knows. He is living being from the moment of conception," say Dr. Ingelman-Sundberg and Dr. Cears Wirsen in their work "The Drama of Life before Birth," published in 1965. Dr. Bart Hefferman, in a book entitled "The Early Biography of Every Man," published in 1972, said that from the time of conception the child is a complex, dynamic individual, who grows rapidly, and that at the moment of fertilization a new and unique individual is created, who, although he receives half his chromosomes from each parent, is really distinct from each of them. Moreover, the scientists Treslar, Behu, and Cowan, in analyzing what they called the "gestational interval," in a work they published in 1967, stated in terms that leave no room for doubt that the beginning of a new life occurs at the moment in which the fertilization is completed by the fusion of two series of chromosomes. Taking up that criterion, the International Code of Medical Morality declared that the doctor should always bear in mind the importance of preserving human life from the time of conception; and the so-called Declaration of Geneva mades the physician promise to maintain the greatest respect for human life from the time of conception.

 

Those scientific principles and principles of professional ethics have also found implicit welcome, as was to be expected, in the legislation of the immense majority of the countries of the western world, in which, almost without exception, the rule is in force that a woman sentenced to death may not be executed if she is pregnant, a benefit that is not limited to women who have reached the state of "advanced pregnancy" but extends also to those at any other stage of the process of gestation of the child. Now such an exceptional provision, which is also found in the International Covenant on Civil and Political Rights approved by Resolution 2200 A (Article 6.5) of the United Nations General Assembly, can only be explained if one starts from the legal assumption that a human being is living in the womb of the woman who would have to be executed, and since this small and unseen human being had not been covered by the sentence, neither morally nor legally could it be made to suffer the death penalty that would fatally be derived from the execution of the mother. This is an evident recognition by the United Nations and by the law in force in many countries that a human being has existence, life, during the entire period of pregnancy of the women.

 

The reasons stated leave no doubt in my mind that the American Declaration of the Rights and Duties of Man refers to the complete period of human life--from conception to death--when it states that "every human being has the right to life"; that, for that valuable instrument of international law, life does not begin at birth--the final phase of the process of gestation--but at the moment of conception, which is the moment at which a new human being, distinct from the father and from the mother, is formed; and that, in recognizing the right of the unborn to life, the Declaration rejects the legitimacy of any act that authorizes or considers acceptable acts or practices that will lead to its death.

 

A new problem, of an International legal order, arises. Up to what point are the declarations, made by consensus or by majority vote, by the international organizations or their competent organs, binding on the states? I am not going to enter into the speculative terrain in which the debates revolve about the legal value of the Universal Declaration of Human Rights--a general expression of the thinking of mankind represented by the United Nations, according to some; and a simple expression of ideals without force of jus cogens according to others. I shall restrict myself to pointing out the singularity achieved in this respect by the American Declaration of the Rights and Duties of Man, when the Council of the Organization of American States approved, without a dissenting vote, at its meetings on May 25 and June 8, 1960, Article 2 of the Statute of the Inter-American Commission on Human Rights, which stated: "For the purpose of the present Statute, human rights are understood to be the rights set forth in the American Declaration of the Rights and Duties of Man." This singularity of the Declaration--implicitly endowed ever since then with the force of the instruments that are jus cogens among the states--has been strengthened with the approval that the General Assembly of the OAS has given during the last twenty years to the Commission's Annual Reports and reports on certain states, all of which concern the observance or nonobservance by the member states of the OAS of the rights set forth in the Declaration of Bogotá. There can be no doubt, in my opinion, that for those states the Declaration is much more than a simple expression of ideals for realization in a distant future; it is a code of conduct, agreed on by all, so that in the Americas the basic principle of the dignity of the human being and due respect for those rights that are essential to man and the attributes of the human individual may maintain full value and effectiveness. A code of conduct that is both "the principal guide of an evolving American Law" and the "initial system of protection considered by the American States and being suited to the present social and juridical conditions," to quote from the preamble to that same Declaration.

 

From the foregoing it is logical that it not be a valid reason, for me, that the existence, in the legislation of many American countries--in 1948--of legal standards that recognized the legality, in certain conditions, of induced abortion, should constitute an insurmountable obstacle for recognition to be given, in the Declaration, to the right of the human being to existence, to life, in the prenatal period. I consider at the international community, or the American community, may, and on certain occasions should, revise the rules of international law in force at the moment, including the recent ones for the international protection of human rights, for the purpose of establishing new precepts that will correspond to the advances of science, to the teaching of experience, to the changing realities of social and international life, to the needs determined by the inevitable changes that the new epochs create in the course of the years, and the aspirations that arise as generation follows generation. The international community, the American community, court not refuse to accept innovations that have a logical and just basis, because doing so would imply stopping the progress of the law and repudiating the principle contained in the Declaration that the system of protection of the rights of man should be strengthened more and more in the international field as social and legal circumstances become more propitious.

 

On the basis of all that has been said, and analyzing the facts that serve as a basis of the complaint that originated this Case 2141, as explained in the Report of the Rapporteur, and the arguments presented by the complainants and the representatives of the Government of the United States, it is my opinion that in the case Commonwealth v. Dr. Kenneth Edelin (Case of Baby Boy) the Supreme Judicial Court of Massachusetts, in reversing the verdict of the jury that convicted the defendant and absolving him of all penalty because it considered that sufficient evidence had not been presented in the trial to show that he had acted "recklessly" or to demonstrate the possibility of life outside the womb of the unborn child identified only as Baby Boy, disregarded, disrespected, and violated Article I of the American Declaration of the Rights and Duties of Man, which recognized that "every human being has the right to life."

 

Therefore, I vote against the draft resolution that declares that the aforementioned decision of the Supreme Judicial Court of Massachusetts does not constitute a violation of that article; and I state for the record that I am not considering the complaint made against the United States Supreme Court in relation to its decisions in the cases Roe v. Wade (410 U.S. 113) and Doe v. Bolton (410 U.S. 179), because the passage of time since 1973 when those decisions were handed down prevents the Inter-American Commission on Human Rights from taking cognizance of them, despite the relationship or influence they may have had in the case Baby Boy (Commonwealth v. Dr. Kenneth Edelin).

 

I request that this dissenting explanation of vote be placed as indicated in Article 18 of the Regulations of the Commission, and that it be given any other usual processing.

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